Rupesh Kumar vs The State Of Jharkhand
2023 Latest Caselaw 1553 Jhar

       IN      THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 2173 of 2013
       Rupesh Kumar
       @ Rupesh Kumar Singh
       @ Rupesh Singh.                                 .....   ...    Petitioner
                                    Versus
       1. The State of Jharkhand.
       2. Nishant Poddar                               ..... ...      Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Lukesh Kumar, Advocate.

       For the State             :        Mr. Achinto Sen, A.P.P.
       For the O.P. No. 2        :        Ms Shrestha Priya Jha, Advocate.
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05/ 11.04.2023       Heard Mr. Lukesh Kumar, learned counsel appearing for the

petitioner, Mr. Achinto Sen, learned A.P.P. for the State and Ms Shrestha Priya Jha, learned counsel appearing for the O.P. No. 2.

2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 23.08.2012, by which, cognizance for the offence under Section 406 of the Indian Penal Code has been taken against the petitioner, in connection with C.P. Case No. 1776 of 2011, pending in the court of learned Chief Judicial Magistrate, Ranchi.

3. The complaint case was filed by the O.P. No. 2 alleging inter alia that the complainant is a business man running his business at Rani Sati Mandir Lane, Ratu Road, Ranchi. In the month of October, 2011 one Mritunjay Mishra came to the complainant and introduced himself as Area Sales Manager of KPR Industries and disclosed that his company is manufacturer of Tea and Spices having its factory at Ghaziabad and Haryana and expressed his desire to carry on business in the Ranchi and Jharkhand Market and asked the complainant to carry on business with the said company and since the complainant is also desirous to develop his business as such the complainant became ready to carry on business with the said company.

Thereafter it is alleged that Mritunjay Mishra got the complainant talked with the accused persons on mobile phone and they introduced themselves as Managing Director and Sales Head of the company. The complainant became ready to do business with the petitioner's company. During the course of negotiation the accused persons induce the complainant to deposit Rs. 5 lakhs with the company towards security money for supply of product over which interest @ 2% per month was payable by the company and beside

this if the complainant would get sell of the product upto 5 lacs per month the commission @ 2% would be payable and if sale is above 5 lakhs then 1% extra commission would be payable.

Further it is alleged that at the time of negotiation with the accused persons it was decided that when the complainant will stop business with the company then the entire balance due of the complainant towards security commission etc would be paid by the company to the complainant without unnecessary delay. The complainant paid 49,990/- on 19.11.2010 and Rs. 2,00,000/- on 14.12.2010 by transferring the said money in the account of the accused in the name of their Firm and requested for supply of goods but the accused persons called the complainant at their office at Delhi with cash Rs. 2,00,000/-.

On 16.12.2010 the complainant went to the office of the accused persons with cash Rs. 2 lakhs and paid the same to the accused person, thereafter and again on being asked the complainant deposited 2.5 lakhs in the bank account of the accused. Thereafter the accused persons send product worth about Rs. 3,50,000/- in 4 installment.

Further it is alleged that the accused persons sent the product and carried on business with the complainant upto March 2011 and thereafter stopped sending the products to the complainant and as such the complainant requested the accused to send the products several times but except false assurance no any quality of product was sent by the accused persons.

On 26.09.2011 the complainant went to Delhi and then the accused persons assured the complainant that they shall make payment of his money by October 2011 but the same was not done.

4. Learned counsel appearing for the petitioner submits that for the business transaction, the complaint case has been filed, which is against the mandate of law. He submits that no ingredients of Section 406 IPC are found. He further submits that the money was deposited and pursuant to that the articles have been supplied to the O.P. No. 2 and in that view of the matter, the complaint case is not maintainable. He further submits that the considering the nature of allegation in the complaint, only the civil proceeding is maintainable. To buttress his argument, he relied in the case of Dalip Jolly Versus State of Bihar & Anr., reported in

2010 (1) East Cr. C. 289 (Pat). Paras-7 and 8 of the said judgment is quoted hereinbelow:-

"7. From perusal of the complaint petition itself, it is apparent that the entire matter in issue does revolve round business transactions and accounting in connection therewith. Such matters do not entail criminal liability and the proper remedy in case of the grievance in connection therewith can be sought before the appropriate forum.

8. For the reasons stated above, the prosecution of the petitioner would amount to an abuse of the process of the court and cannot be sustained in law. Accordingly, the impugned order, so far as the petitioner is concerned, is hereby set aside and the application is allowed."

5. Learned counsel appearing for the petitioner further relied in the case of Rajendra Gupta Versus State of Bihar & Anr., reported in 2008 (4) East Cr. C. 564 (Pat) and also in the case of Amitabha Das Gupta Versus State of Jharkhand, reported in 2010(4) East Cr. C. 133 (Jhr). Relying on these judgments, he submits that the entire criminal proceeding may kindly be quashed.

6. Leaned counsel appearing O.P. No. 2 submits that there are allegation of defalcating the money by the petitioner and when the O.P. No. 2 went to meet the petitioner, the office of the petitioner was found to be closed and when the O.P. No. 2 tried to meet him at his residence, where he refused to meet him. She further submits that intention of cheating from the very beginning was there, that's why criminality is made out.

7. On the other hand, learned counsel appearing for the State submits that the learned court has taken the cognizance after looking into the solemn affirmation and the enquiry witness, as such, there is no illegality in the order taking cognizance.

8. In view of the above submissions of the parties, the court has gone through the contents of the complaint as well as the order taking cognizance and finds that admittedly the petitioner has called upon the O.P. No. 2 to invest the amount in the company of the petitioner. Initially the O.P. No. 2 has paid a sum of Rs. 5,00,000/- to the petitioner, which was kept as security deposit by the petitioner. Thereafter Rs. 2,50,000/-, Rs. 2,00,000/- and Rs. 50,000/- respectively have also been paid to the petitioner, pursuant to that the articles were supplied to the O.P. No. 2.

9. In para-8 of the complaint, it has been alleged that a sum of Rs. 2,00,000/- has been given to the petitioner in cash, for which, the petitioner has not given the money receipt, however, assurance has been made for supply the articles, but neither the articles were supplied nor the money has been returned to the O.P. No. 2, as such, the dishonest intention was there from the very beginning. In para-10, it has also been disclosed that the O.P. No. 2 went to meet the petitioner, however, the office of the petitioner was found to be closed and when the O.P. No. 2 also tried to meet him at his residence, where he refused to meet him. As such, from the very beginning, the intention of cheating was there, that's why criminality is made out.

10. The judgment relied by the learned counsel appearing for the petitioner in the case of Dalip Jolly (Supra), the entire matter was revolving around the business transaction, but in the case in hand, there is allegation of closing the office and not meeting with O.P. No. 2, as such, it transpires that criminality is made out.

11. It is well settled that if the criminality is made out, civil and criminal both cases can go simultaneously. Reference may be made to the case of M/s Medchl Chemicals & Pharma P. Ltd. Versus M/s. Biological E. Ltd. & Ors., reported in (2000) 3 SCC 269, wherein the Hon'ble Supreme Court in paras-14 and 15 held as follows:-

"14. Needless to record however and it being a settled principle of law that to exercise powers under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same. But the offence ought to appear ex facie on the complaint. The observations in Nagawwa v. Veeranna Shivalingappa Konjalgi lend support to the above statement of law:

"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in

issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

15. In the matter under consideration, if we try to analyse the guidelines as specified in Shivalingappa case can it be said that the allegations in the complaint do not make out any case against the accused nor do they disclose the ingredients of an offence alleged against the accused or the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion that there is sufficient ground for proceeding against the accused? In the present case, the complaint as noticed above does not, however, lend credence to the questions posed. It is now well settled and one need not dilate on this score, neither do we intend to do so presently that the allegations in the complaint will have to be accepted on the face of it and the truth or falsity of which would not be gone into by the Court at this earliest stage as noticed above: whether or not the allegations in the complaint were true is to be decided on the basis of the evidence led at the trial and the observations on this score in the case of Nagpur Steel & Alloys (P) Ltd. v. P. Radhakrishna ought to be noticed. In para 3 of the Report this Court observed:

"3. We have perused the complaint carefully. In our opinion it cannot be said that the complaint did not disclose the commission of an offence. Merely because the offence was committed during the course of a commercial transaction, would not be sufficient to hold that the complaint did not warrant a trial. Whether or not the allegations in the complaint were true was to be decided on the basis of evidence to be led at the trial in the complaint case. It certainly was not a case in which the criminal trial should have been cut short. The quashing of the complaint has resulted in grave miscarriage of justice. We, therefore, without expressing any opinion on the merits of the case, allow this appeal and set aside the impugned order of the High Court and restore the complaint. The learned trial Magistrate shall proceed with the complaint and dispose of it in accordance with law expeditiously."

12. In view of the above, this is not the case, where the criminality is not made out. As such, no relief can be extended to the petitioner, according, this petition is dismissed.

(Sanjay Kumar Dwivedi, J.) Amitesh/-